LEGCO PANEL ON PUBLIC SERVICE
MEETING ON 28 APRIL 1997

The AECS has been invited to express its views on "whether or not a Chinese language requirement should be imposed for officers in the civil service in applying for renewal of agreements, transfer to local agreement terms, transfer from agreement terms to local permanent and pension terms, and new recruits on agreement terms."

Proposal fundamentally flawed

2. At the outset we say that the proposal is fundamentally flawed. This is because -

The introduction of an across-the-board Chinese language requirement, whether for serving officers or for new recruits, would be unlawful as it would infringe Article 21 of the Bill of Rights.It would conflict with the Basic Law. It would be counter-productive to the efficient running of the Civil Service. In relation to serving officers, it infringes the principle against retrospectivity and against any unilateral derogation of existing conditions of service.

3. As Members are aware the AECS contested before the Courts a number of aspects of the Governments localisation policy. In essence, the Associations position was that certain parts of the policy were in breach of the Bill of Rights. Of that number, 14 were declared by the Courts to be unlawful. The Court of Appeal handed down its judgment concerning the various issues last November. No appeal was lodged. The Courts judgment is now settled law.

4. Several of the issues considered by the Court of Appeal concerned Government decisions to impose Chinese language requirements. One of them was a decision that a Chinese language requirement could be involved in considering an application for transfer from overseas agreement terms to local agreement terms. That requirement was virtually identical to one segment of the proposal the Panel is today considering. The important point to note is that the Court of Appeal found that decision infringed the Bill of Rights. In fact, every decision by Government involving the introduction of Chinese language requirements was held to be unlawful, both in the High Court and in the Court of Appeal.

5. To avoid the risk of the principle involved being misunderstood it might be helpful to refer to the reasoning given in the judgment. What the Court said was :

It boils down to this in the present case. A category of persons, namely officers being considered for transfer from overseas terms to local terms, are being treated differently depending on whether or not they can communicate in Chinese. So a language distinction is being made. Is it a fair language distinction or a discriminatory one?

It may be discriminatory even though the decision-maker acted in perfect good faith, as I do not doubt that the SCS had.

Whenever there is a distinction, the question under article 21 of the Bill of Rights is whether that distinction is fair and therefore lawful or discriminatory and therefore unlawful. In short, can the distinction be justified?

To justify the distinction it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some such distinction; two, that the particular distinction made to meet that need is itself rational; and, three, that such distinction is proportionate to such need.

That is the test as to justification, being one of fairness, genuine need, rationality and proportionality: designed to answer the question whether a distinction is fair and therefore lawful or discriminatory and therefore unlawful.

Its application in any given case calls for a careful assessment of the circumstances of that case. If it is contended that a distinction is needed because problems would otherwise arise, then that contention must be scrutinized. And it will not be accepted unless it is clear that there really would be serious problems which would be very difficult even if not impossible to overcome. Human rights are involved here. And courts and tribunals must guard such rights by guarding themselves against being persuaded to make too much of problems put forward with a view to justifying distinctions in the way people are treated.

Having explained the principle the Court of Appeal then posed the key question:

Does the evidence in the present case warrant the view that the civil service will be unable to operate efficiently just because some officers are, by reason of their lack of Chinese, unable or limited in their ability to stand in for some of their colleagues in the same rank? There is no evidence to warrant such a view. There was no sufficient need for the distinction. Result:-unlawful

6. Following the reasoning of the judgment there can be no doubt that all the proposals being considered today would be in breach of the Bill of Rights. If the proposals were to be taken forward, it would surely send a worrying signal to the community, or at the very least imply that the Bill or Rights can be turned on and off by the Government like a tap. The Court of Appeal judgment succinctly summarized the inherent danger by saying -

"To hold that the executive may ignore the law is to abandon the Rule of Law."

Accepting that the Bill of Rights does not permit across-the-board language tests, can LegCo introduce amendments which would achieve the same end? The judgment commented on this possibility as follows:

"One thing can be disposed of straightaway. There was no risk of the Legislative Council seeking to legislate away any of the rights secured by the Bill of Rights. First of all, I cannot imagine that the Legislative Council would want to do that even if it could. Secondly, it could not do so even if it wanted to."

Unilateral derogation of existing conditions of service

7. In relation to serving officers, the proposal, additionally, would infringe the principle against retrospectivity and amount to a unilateral derogation of existing conditions of service. It would be contrary to longstanding civil service rules and practice - by which serving officers, whether on agreement or not, may not be adversely affected by new or contemplated future changes in conditions of service. An example in respect of transfer to the permanent establishment is the option given to agreement officers to choose between the New Pension Scheme and the Old Pension Scheme if they were appointed before 1 July 1987. There are many other CSRs of similar effect. In a recent high-profile case, the Government took into account the principle against retrospectivity when considering the position of all existing employees of the Hospital Authority (including agreement officers upon the renewal of their agreements) on the issue of double housing benefits. It is not lawful for the Government to negate or restrict either that option or those Court declarations of legal rights by changing the existing criteria - which have been established in law as part of the conditions of service of serving agreement officers, whether overseas or local. This is not merely a question of contract law - the overriding question concerns the lawfulness of the exercise of public power within the framework of public law which binds the Government and governs the legality of rules made for administering the civil service.

New Recruits

8. In relation to new recruits it would deny access to the civil service of a significant portion of Hong Kong permanent residents whose mother tongue, other than Chinese, follows that of their background. Language skills are socially generic. Language fluency is primarily a product of a persons racial, cultural, and social or educational background. As such it is typically closely linked to other prohibited distinctions such as race, colour, and national or social origin. Persons of one race, culture or origin may find it either impossible or prohibitively difficult to master the language of persons of another race, culture or origin. They would be unable to comply with the proposal merely by reason of their ethnicity, national or social origin, culture or education.

9. Since language skills are socially generic, language requirements are more exclusionary still in respect of Hong Kong people who are not of Chinese culture. The proposal would be discrimination on the basis of language. Some 12% of Hong Kongs population reported that languages other than Cantonese were their mother tongue in the 1991 census. Therefore the minority of Hong Kong people which would be excluded by the Chinese language requirement would be large. Any one of that minority being a permanent resident could take court proceedings against the Government under Article 21 of the Bill of Rights. Notwithstanding the predominance of Chinese as a mother tongue, Hong Kong is a multicultural society in which English is the unifying language amongst its many diverse communities. The Government is duty bound to avoid policies which discriminate against minority communities - in this case, in respect of their right to equal access to the public service.

Basic Law

10. The Basic Law provides the parameters for the maintenance of Hong Kongs "system" after reversion to Chinese sovereignty. Regard should therefore be given to the Basic Law when considering proposals such as the present one. The Basic Law requires observance of the principles of equality of opportunity for all permanent residents irrespective of their race or origin or official language; open recruitment and promotion on merit; and equal pay for equal work. The Basic Law specifically provides that public servants serving in the Hong Kong Government may all remain in employment with the Special Administrative Region Government. So, it can be seen that the various elements of the proposal under consideration, if implemented, would not converge with the relevant provisions of the Basic Law.

11. Article 9 of the Basic Law states "In addition to the Chinese language, English may also be used as an official language....". There have been comments that this article provides for bilingualism and/or that English is subservient to Chinese. On this point a legal opinion was obtained by the Senior Non Expatriate Officers Association dated 16 December 1996. (a copy of this opinion was provided to the Government and used in its presentation to this Panel of its reasons for not appealing to the Privy Council). At paragraph 28 Mr. Johannes Chan stated:

"Instructing solicitors point out that art 9 of the Basic Law makes Chinese the dominant language. With respect, I do not agree. The Chinese version of art 9 clearly states that English is also an official language.... the reference to English as the official language was inserted into art 9 of the Basic Law exactly because of the concern that English may be of secondary status under the Joint Declaration."

12. So even legal advice obtained by a local Association disabuses the notion that China plans to downgrade the importance of English.

13. A language policy which permits access to the permanent public service only to a bilingual, triliterate elite is both discriminatory and inconsistent with the intention of the Basic Law to enable the best possible service to be developed or delivered by the best available talent in either of the official languages. Like any other policy which provides a prohibited distinction it requires careful assessment. Such requirement constitutes discrimination on the basis of the prohibited distinction of language (and indirectly, race, culture and national or social origin) since it denies access to the public service by means of a blanket policy which is objectively unrelated to the merits of performing public service tasks. The policy overemphasises language skills at the expense of the substantive skills which are of critical importance to ensuring the excellence of the public service.

14. The flexibility of Article 9 implicitly recognises not only the continuing importance of the English language in addition to Chinese but also the rights of the many people in Hong Kong of different ethnicity or background who under the Governments education policies - or more fundamentally the educational choices made for children by their parents - are expected to be fluent in either Chinese or English, but not necessarily in both, upon the completion of their formal education.

Proposal Counter-productive

15. Finally, I want to comment on the question of whether from a practical perspective it would be a good thing to adopt the proposal. It has been said that since most people in Hong Kong are Chinese and speak Cantonese, the civil service should be able to communicate with them in their mother-tongue. This statement fails to recognise two important facts. First, the civil service is already more than 99% comprised of Chinese officers. The community is therefore already receiving "Chinese service" whenever it is required. Secondly, English is in fact understood by the majority of Hong Kong people. According to a report compiled by the Education Commission in July 1994, the percentage of those claiming to understand English had risen from 44% in 1983 to 70% in 1993. It is also significant that the report went on to say "Cantonese is overwhelmingly the language of the home, the street and the entertainment media. Real-life English uses are mainly confined to the adult world of higher education, business and the civil service."In fact, it is well known that professional officers correspond with other professionals in the private sector and in the civil service in English irrespective of their mother-tongue e.g. in the legal, engineering, architectural professions etc.

16. To force the officers concerned to leave the civil service on ill-founded language grounds would simply not make sense. Rather than facilitate the civil services role of serving the community, it would have a detrimental effect. This would be for the very simple reason that Hong Kong would be unnecessarily deprived of dedicated officers with long-acquired experience and expertise. And, of course, the requirement in respect of new recruits would also create pointless difficulties. To provide an obvious example, one need only look to the recruitment exercise presently being conducted by the Civil Aviation Department for air-traffic controllers to work at Chep Lap Kok. English proficiency only is required, because that is the language used in the profession. But if a Chinese language requirement were also to be imposed, chances are the new airport would not open in 1998.

17. One might well ask whether selfish motives rather than community-minded considerations are behind proposals such as the present one. They do not accord with the views of many respected people in the private sector. An article in the South China Morning Post on 3 April 1997 by the well known correspondent and Legislative Council Member, Mr. David Chu, provides a good example. In the course of explaining the importance of English in Hong Kong, he commented "As daunting as the task of restoring English to its premier place may be, it has to be done." And, "Just as China is embracing English our Government is ironically doing the reverse."

18. I would like to close by asking this Panel to urge Government to accept that legally and economically the appropriate policy should be to employ the best persons among permanent residents in the public service - without reference to irrelevant and legally prohibited distinctions. Such a policy would make the most sense in modern, multiracial and multicultural Hong Kong, both today and beyond this time of historic transition. To do otherwise would be counter productive to the achievement of a smooth transition on the transfer of sovereignty and would send all the wrong signals during a very sensitive period when Hong Kong is under close and continuing scrutiny both domestically and abroad.